In her application, Mkhwebane opposed Zuma’s desire to appoint a retired judge himself to head the judicial commission of inquiry into state capture in the country.
In her State of Capture report, Madonsela recommended Chief Justice Mogoeng Mogoeng, and not Zuma, should appoint a retired judge, and Mkhwebane agrees.
This comes after Zuma filed court papers asking to be granted a stay of execution on the remedial action proposed by Madonsela.
The report implicates Zuma, his family and Gupta-linked companies in the serial abuse of state funds to benefit the Guptas.
However, Zuma argued that the remedial actions should not be implemented until he could clear his name of the allegations in Madonsela’s report.
But Mkhwebane disagrees. In her strongly worded counter- affidavit, the public protector said Zuma and the government had publicly expressed their support for the establishment of the commission, saying it could be established and begin its work.
“This will not preclude the courts from determining the legal question concerning the lawfulness of the remedial action,” she said.
Mkhwebane said Zuma’s application sought to retain control over various aspects of the commission’s functioning.
“Because the allegations in the report implicate him personally and financially, it is not permissible for him to do so.
“His challenge to these aspects of the remedial action has no prospect of success,” Mkhwebane said.
She was adamant that remedial action must be complied with until a court had set aside, or granted, an order suspending its implementation.